UK: Disability discrimination: discrimination arising as a result of disability

The claimant was Head of English at a comprehensive school until he was dismissed for showing an inappropriate film to vulnerable teenage pupils. He had been under considerable pressure, working in a struggling English department. He also had cystic fibrosis that required him to undergo an extensive and exhausting exercise regime to clear his lungs which left him very tired so he had less scope than others to keep on top of things by working longer hours. This resulted in him suffering from stress which was what led to his lapse of judgment in showing the inappropriate film. His employer knew about his disability and that he was suffering from stress but failed to make adjustments.

The claimant brought claims for unfair dismissal and for disability discrimination because of ‘something’ arising as a result of his disability. Although the tribunal found that his dismissal was fair, it decided that his dismissal was unfavourable treatment and that the ‘something’ that led to his dismissal was him showing the inappropriate film, which arose as a result of his disability.

The Court of Appeal said this was not a contradiction: the test of reasonableness in unfair dismissal is whether the dismissal was within the range of reasonable responses. However, the test for justification for unlawful discrimination involves the tribunal applying its own judgment to the facts of the case, and in this case it concluded that dismissal was not a proportionate means of achieving a legitimate aim. The Court also confirmed that it did not matter that the employer was unaware of the link between the claimant’s disability and showing the inappropriate film.

Comment:
Employers must ensure that they:
• follow up on complaints from staff about stress, and consider obtaining a medical report and whether to make reasonable adjustments
• obtain medical evidence before taking disciplinary action against an individual who has a disability

The test for reasonableness in disability discrimination is a higher bar than for unfair dismissal – employers cannot rely on the fact that dismissal was one option open to a reasonable employer.

City of York Council v Grosset
http://www.bailii.org/ew/cases/EWCA/Civ/2018/1105.html